Friday, July 2, 2010

While I did not write about it at the time, I was disappointed, but not surprised, by the Supreme Court's decision in U.S. v. Stevens, which struck down the federal law prohibiting depictions of animal cruelty. If you haven't had the chance to read it, I'd encourage you to at a minimum read Justice Alito's dissent. The opinion is available from the Supreme Court's website at this link. Justice Alito correctly criticized the majority's reliance on speculative and hypothetical cases that have not and would not be prosecuted under the law, such as hunting videos or depictions of animals being slaughtered for food. Justice Alito focused his decision on addressing the actual case before the court that involved dog fighting videos and discussing the "crush videos' that the law was designed to combat.

I wanted to write a brief post now, because the decision came up again yesterday during the confirmation hearing for Supreme Court nominee Elena Kagan. As Solicitor General, Kagan's office had defended the law, but during the hearing Kagan stated that the law was drafted in a way that made it difficult to defend from a First Amendment perspective. Josh Gernstein at Politico notes that the questioning came from Orrin Hatch. While both Hatch and Kagan agreed on the difficulty of defending the statute based on the way it was drafted, Kagan also pointed to Justice Alito's dissenting opinion as proof that the arguments he office made in defending the law were not without merit.

While it's impossible to say with any certainty, based on her comments, it's doubtful that Kagan would have been a second vote in favor of upholding the law had she been on the Court. Nevertheless, there are moves afoot in Congress to revive the law and be more precise in its drafting in order to address any First Amendment concerns. Hopefully, Kagan will be supportive of this new law in the event that it is challenged.